In-House. Out-Takes.

With this blog, I hope to share my experiences and thoughts on both a professional and personal level and maybe learn something from those who bother taking the time to read it. Don't expect substantive legal analysis, this is more about the practical side of being in house and dealing with business people. Drop me a line at Tanya(at)InHouseOutTakes(dot)com to let me know how I’m doing.

Wednesday, January 3, 2018

I’ve spent the last decade plus in the world of start-ups,
which has given me a front row view of many different types of entrepreneurs. I’d love to say that I can pick out which
ones will be successful by now, but I’ve bet on the wrong horse a couple of
times because there is no one profile of a successful entrepreneur. However I have discovered that there are a
few traits that successful entrepreneurs have, and you’ll be surprised to hear
that successful in house lawyers share many of these traits.

Risk
Taking.Unlike our law firm brethren, in
house counsel are required to have a higher risk tolerance than what lawyers
generally are comfortable with.Likewise
a successful entrepreneur is most successful when taking risks that others are
not comfortable with.The difference
between success and failure for both is ensuring that those risks are very
calculated.Sure you can get rich by
speculating on new crypto currency, and you can lose your shirt just as
quickly. To court success you need to reach beyond what the status quo offers
but only in areas where the return on the risk makes sense.Investing your life savings in a better mouse
trap can have a high return, investing your life savings in beer flavored bubble
gum might not be the best risk to take.For lawyers, this means being comfortable
with letting the governing law be New York instead of Delaware but not letting
a bet the company litigation be handled by the lawyers at Better Call
Saul.

Leadership.No one builds an empire by themselves.To launch the next great tech product, at a minimum you need someone
with the skills to write the code, build the website, perform market research
and marketing plans, handle the finances, create the license or service
agreements, sell the product, etc.You
might be able to start small, but to grow into a successful company you’ll have
to eventually grow your team.And to
make sure they’re all rowing in the same direction, you need get people on
board with your vision. If you can’t
generate complete buy in by your early hires, it won’t matter how great of an
idea you have the company won’t be successful.Similarly for the in house lawyer, you might be able to start out small
reviewing simple contracts.But to make
an impact on the company, you’ll need to get other leaders to buy in to your
advice in all areas.You’ll have to lead
them to their goals and help them get out of their own way.Like successful entrepreneurs, successful lawyers
lead their teams through the big and small challenges so that the company can
reach its ultimate goal.

General Business Sense.Some people are born with perfect pitch or an
innate ability to understand math.Others have a high emotional quotient and are able to easily empathize
with others. To be a successful entrepreneur, you have to have a mixture of
common sense and business sense.While
you don’t have to have a degree in accounting, understanding a P&L shouldn’t
be difficult.Understanding the difference
between market forces and marketing efforts, and having some comfort with
regulatory requirements are also required traits. Successful in house lawyers
need this general business sense as well.In order to know when to stand firm on that clause or when to advise
against registering that trademark that will only be used for the next month.You also need to have enough financial wherewithal
to know when it makes sense to add headcount to your team, fight for the budget
for that software, or hand something off to a non-lawyer.

One of the smartest things a
successful entrepreneur does is hire the necessary talent before going without
gets painful. This includes bringing in
a good in house lawyer. And sometimes it
means being a good in house lawyer.
Which is why I’m happy to announce that along with my fellow in house
lawyer, Christine Jones, and some incredible tech talent in Neil Proctor, I am
officially joining the ranks of new entrepreneurs with the launch of AloeTM
law department management solutions at Bigfork Technologies. (www.bigforktech.com).

Tuesday, October 10, 2017

It seems like every aspect of our world has been touched by technology. I no longer have to lift my arm to hail a cab, I can click Uber or Lyft; I get my coupons and shopping discounts automatically with HEB and Dosh. The kids' school updates me on their grades and daily progress with Bloom and online portals. We can even keep in touch with family with video calls on our Alexa. So why then is it so hard to get legal departments to efficiently embrace technology in their legal operations?

I've been delving into this issue for awhile, largely because I'm a tech geek at heart and I strongly believe that the in house legal community need to get a better handle on legal operations if they want to stay relevant in a world with Watsons. And I'm not alone. I've recently chatted with a few other GC's about how they are setting up their teams to compete in the new world. One conclusion we keep returning to is that there is a lot of technology out there, but very little that is specifically focused on internal legal departments.

But just because there isn't a perfect tool yet, shouldn't stop the in house lawyer from embracing technology. I can almost guarantee that your engineering/IT team use some sort of ticketing system, most likely Jira based. They probably also use some sort of collaboration tool like Slack. Many are embracing Google docs or other online collaboration tools. Your sales team is probably utilizing Salesforce and probably a calendaring tool. Your accounting team is using some tool, be it Quickbooks or SAP. To set up these technologies, each team had to start in the same place - an assessment of how the work flows and what could be done better, or made easier by process and technology.

I know, it's overwhelming to think about mapping out the entire functionality of the legal department. While outside counsel may think all we do is sit in meetings and hand out work to them, and our friends may think all we do is negotiate contracts or argue in court, we know how varied the typical day is for in house legal. Mapping out all of the current processes for negotiating contracts, managing litigation, managing outside counsel, product advice, employment matters, general business advice, etc. is a huge task. Analyzing the result and identifying areas of improvement is even more daunting. This is why more and more companies are hiring a dedicated legal operations professional.

Although that's not an option for everyone given budget constraints. Other options include hiring a short term consultant to do the mapping and analysis for you, or taking it one process at a time. The former being a larger up front cost, but by looking at the whole picture sooner you can achieve efficiency (and cost savings) sooner. The latter requires incremental improvements which may have to be re-worked as additional flows get added to the map. While it's no fun to do something twice, this option will still generate efficiency in the department. I suggest starting with the workflow that most dominates the team's time. For some that would be contracts, others litigation management or regulatory compliance. The point is to get started wherever you'll get the most bang for your buck. Most likely the subsequent flows will have to revolve around this one by nature of the workload, so you'll minimize the revisions needed. By focusing on one flow at a time, I was able to reduce time to revenue by 60% (focusing on contracts), reduce outside counsel spend by about 10% (adding a corporate compliance module), and reduce litigation by monitoring the trends and being proactive (tracking root causes of complaints). I was also able to report on these efficiencies to my leadership team with some pretty eye candy charts.

Embracing technology and legal operations will allow you to accomplish more with less. After all, isn't that the mantra we've been hearing from our leadership for the last ten years?

Monday, July 10, 2017

One of the largest responsibilities any leader has is to grow their team – not in headcount, but in development, capability and responsibility. A good leader, regardless of the department, should have an idea of where her people want to be in the future and how she and the company can help them reach that goal –while also benefiting the company. So it behooves her to have frank conversations and encourage everyone to do honest assessments of where they are at and where they want to be, including the quantity and quality of the workload they currently have and the bandwidth to take on more.

Ideally, this conversation starts in the interview process. Beyond the, “where do you see yourself in five years” question, every candidate should be asked about their long term career goals. In a small legal department hiring a second (or third) lawyer who one day wants to be a GC isn’t a bad thing – so long as one day is far enough in the future and the skills they need to develop in order to get there are skills that can be developed in your environment. On the other hand, hiring someone who is ready to be GC now, whether in skill set or mindset, to be the third lawyer in the department is going to make a bad fit, regardless of personality, niche practice or anything else that makes them glow on paper.

Once you’ve hired the right person, you have to provide opportunities for growth. Let them work on a project that is a stretch. Provide opportunities to lead discussion and interact with the leadership of other departments. Provide training and resources when available. And most of all provide encouragement of the growth. You’ll never get the best work out of someone if they don’t think that you’re on their side.

As a result, you need to be prepared for when your best employee outgrows you or your organization. After doing an honest assessment of where they’re at in their career, and what your organization has to offer, allow them to determine if they’re happy where they’re at, or if their personal growth requires them to move on. Provide support for whatever decision they make. This doesn’t mean allowing someone to search for a job on company time or begin to deliver less than their best work. But it does mean providing references, introductions and opportunities to be in the “right place” to find their next role.

And most importantly, allow yourself the same freedom. Even if you’ve reached the top in your organization, you may find yourself unhappy or unsatisfied. You may need to reach for a bigger organization, or ask for a more complex role. I know a few GC that have moved to operating roles and are quite happy. I know others that have moved to public policies and politics. And others still that have taken on business development responsibilities in addition to their legal role. At least once a year, assess your situation. Are you still growing? Do you have the opportunities you need? Or is it time to go?

Monday, June 26, 2017

The first time I was asked to prepare the legal department budget I had no idea what I was doing. I’d inherited a budget made by business people with little to no experience in managing legal matters. I’d only started a few weeks prior, so had absolutely no insight into the priorities, strategies or cadence of the business. I really could have used a Budgeting 101 crash course.

This isn’t unusual when you’re taking over (or starting) a legal team. But it is a challenge. The budget you inherit may or may not be reasonable; if it was created by business people it most likely leaves out operational costs they’re not used to having, and will almost always under-estimate outside counsel spend. Unfortunately, you won’t be in a position to determine any issues with your budget until you’ve lived with it for a few months. By then you’re having to justify deviations from the budget, getting approval to add expenses that weren’t complicated, and if you’re really lucky you may even save on some line items.

The real fun begins when you enter the next budget cycle (this is especially true if it’s your first time creating a legal budget.) You’ll rack your brain to think of everything that should be included and how to value the contingencies that you should reserve for – and those that you shouldn’t reserve. Depending on the size and maturity of your organization and the industry that you’re in, the average legal budget ranges anywhere from 1-5% of the company’s revenue. So if you’re a small to mid-size private company in a reasonably regulated area with $50MM in revenue, you should expect your budget to be around $500k. Larger companies, more regulated industries, or companies with a history of complicated litigation or major intellectual property issues, you’ll be closer to the 5% mark. If you’re a startup just out of stealth mode, expect your budget to border on non-existent and ‘I can barely pay you, please don’t spend anything else.’

Now you know what your ceiling is expected to be, don’t forget the important things. Salaries go into the budget – marked up with the fully loaded cost. That’s usually your biggest cost. Legal software like contract management, matter management or IP docketing also need to be included. Although depending on the use and integration you may be able to allocate some of this cost to other departments. For example the cost of a contract management software that plugs in to SalesForce may be shared with sales if they use it to process all sales contracts. Registration fees for IP or other licenses are generally going to be allocated to legal. Immigration costs may fall under legal, HR, or may be allocated to the hiring department. And don’t forget professional development – your bar dues, CLE expenses, conferences, etc. If they’re not in the budget, they're coming out of your pocket.

The harder part of the budget it’s the contingent expenses. No matter how good of a lawyer you are, you will need outside counsel or other outside advice. The trick is budgeting for it. If you know you’re involved in litigation, that’s easy. But how do you plan for potential litigation, the patent registration fee for the idea that hasn’t been disclosed yet, or that tricky corporate matter that only comes up because of something a board member says or does? There is no right answer to this one. If you ask ten GC’s how the account for this, you’ll get ten answers.

Because I work in technology companies, IP has always been important. I work with the engineering, marketing, and finance leads to come up with an estimate of how many applications we can reasonably expect to file in the year. As a startup, that is generally in some type of fundraising all the time, I always add a small amount for the random corporate question. And my CFO and I typically agree to treat new litigation as extraordinary expense that doesn’t get budgeted until it’s reasonably likely to happen.

Even with all of that planning, you’re likely to need to make mid-year adjustments. This is why it’s important to know the business side of your business. Knowing the cycles, the priorities, the business risks, and the company strategy will help you to more accurately predict the costs of the legal services it will need. Knowing the personalities in charge of the departments most likely to generate legal work is also critical. Maybe most importantly, being on good terms with your CFO and finance team will help you to navigate those unbudgeted matters in a way that best protects the business.

Monday, June 19, 2017

Five years ago when I
started this blog, I made a short post about words uttered in the work place that I never imagined when I graduated
from law school. While I can’t believe I’m
still fooling around on this blog, I can’t resist the opportunity to update
this list (with a little help from some other legal type friends):

“What is the
justification for seeking reimbursement for the beef jerky and condoms as a
business expense?”

“No, stupid isn’t a
disability. I’m not even sure how you would reasonably accommodate stupidity if
it were.”

“Sorry, but dependent
benefits does not cover doggy day care.”

“Canada is a different
country (from the US). Alaska, however,
is not.”

“Bob, why are you
wearing a football helmet to our staff meeting?”

“No, a patient cannot
redline the notice of privacy practices.”

“No, just because
someone put it on the internet doesn’t mean that you can freely use the code in
proprietary software… Please don’t make me explain ‘proprietary’ again.”

“Putting in a pool isn’t
a valid business expense, even if you invite everyone over for a party.”

“Should someone go in
there and break that up? Oh hell, do I
need to in there and break it up?”

“Don’t get stressed,
they’re just like toddlers but not as malicious” – when talking to a young paralegal
nervous about dealing with engineering.

“No, you don’t have to
reasonably accommodate a millennial by allowing her mom to come to work with
her.”

To the infosec guy in
the office below – “knock three times on the ceiling if you want me.”

To the board while
explaining how targeted behavioral ads work, “ever wonder why you keep getting
ads on Viagra?”

“I’m sorry about her
cat, but you are within your rights to deny the bereavement leave request on
that one.”

“How long has he been
standing on top of the file cabinet?”

“Joe, do you know
where I can get a piñata?”

“No, use the plastic
mini-liquor bottles in the piñata, not the glass ones – they’re a hazard.”

“I don’t want to call
your mother, but I will if I have to.”

“Yes, marijuana at
work is still a drug issue.”

“No, you can’t not
hire her because you have a ‘deal’ with your wife not to be alone in the room
with another woman. Seriously, you do
that not every woman wants to have sex with you – right?”

Monday, April 3, 2017

It’s that time of year again. April is Autism Awareness month. I’m sad to say that even though we’re at 1 in
68 kids being diagnosed with some form of Autism there is still a lot of
misconceptions about it. So, I do my
small part and share some of how Autism has effected myself through my
professional life. I’ve previously
written uplifting lists of how my autistic son has influenced the way I see the
world. And all of those things are still
very true. Learning how to navigate
the world with LG has broadened my perspective on a lot of the day to day
interactions in the workplace. Just like
relearning the golden rule when your kid goes to kinder, there’s
something to be said about taking a step back and re-evaluating how you respond
to your environment.

However, there is another impact to my professional life
that doesn’t get mentioned as much. As the parent of a special needs kid, my
career choices tend to be more conservative than they may otherwise be. When interviewing with a potential employer I
have to ask about things like benefits, and what type of coverage for autism
services are included. I have to explore
the flexibility of office hours. I have to reserve a few of my PTO days each
year to deal with ARDs, neuro appointments, and pre-visits to new places he’s
going to be required to attend in the next few months. I have turned down job offers because it
would require me to move to an area that didn’t have enough therapists within a
30-mile radius. And I let another
opportunity go because the insurance benefits didn’t cover ABA therapy.

I am extremely lucky.
I work in a field where I am well compensated and typically receive good
benefits. I am senior enough that I can require flexibility as a part of
negotiating a new position. For the most
part a contract doesn’t care if it’s reviewed at 3 pm or 3 am, and execs often
exchange texts or phone calls late at night or early in the morning depending
on their work style - so my work product isn’t materially impacted because of
my need for flexibility. In house
lawyers are generally on call 24/7 anyway, so having my butt in a seat from 9-5
doesn’t impact my earning potential.

Unfortunately, autism doesn’t just effect the children of highly
paid professionals. And as much as we
protest as employers that we’d never hold it against an employee, if you’re
working in a call center it’s a lot harder to be flexible when your kid has a
2-hour meltdown and refuses to get in the car. (Sure you could force him, but
he’s almost as big as you now and is really hard to physically pick up - even if
that was a healthy way to deal with a meltdown.) It’s harder to demand great insurance
benefits from the minimum wage job you had to take so that you could shuttle
him to the several therapy sessions a week that he needs - for which you now
rely on grants and Medicaid to pay. And
if your employer only allows 5 PTO days a year, you reserve all of them to deal
with the kid and his needs. All the
while, you pray that you never get sick or need a day for anything else.

None of this addresses what the child goes through himself,
which is exponentially harder than the administrative stress that parents go
through. So while we thank you for the
sentiment of “I don’t know how you do it,” please don't start comparing us to real martyrs. Instead,
please take a moment to think of how you could support the autism
community. Maybe it’s just a supporting
look when a kid is having a meltdown in the middle of the school hallway
instead of the judging of parental skills because he’s shouting some choice
words that shouldn’t be in a second grader’s vocabulary. Maybe it’s donating money or time to one of
the many organizations that are working to make life easier for the community –
Autism Society of Austin is one of my favorites. Maybe it’s cutting one of
your employees some slack for coming in late when their kid has a bad day, or
if you’re senior enough fighting for policies that make life just a little
easier. Maybe your company can employ
someone with autism, giving that person a chance to make a living and the rest
of your employees some exposure to and hopefully empathy for a real autistic person,
not some cute kid on a poster. If
nothing else, go learn something about autism and share what you’ve learned
(unless you’re going to say it’s caused by vaccines, then just shut up.)

Light It Up Blue, or Tone It Down Taupe –
either way spread awareness so that instead of forcing these amazing people to
conform to our rigid society, we start thinking of how our society can be more
accommodating and accepting of them.

Friday, November 25, 2016

I hope everyone had a great Thanksgiving holiday. I'm full of turkey, done with my black Friday shopping and was ready to get back to work. Working for a small start up that is open most days of the year, we take turns playing the 'grown up' on site during slow times like the Friday after Thanksgiving.

Since I wasn't leaving town or hosting family, and being one of the newest members of the team, I volunteered to be the adult today. I woke up early and got an extra long walk in, getting my 10,000 steps by 6:30 am. Got ready and hit every green light on the way in. I was in such a good mood, I even stopped to buy donuts for the few of us that were on the black Friday shift. As I rolled into the parking lot around 9, I noticed there were only about 6 cars in the entire lot of the multi-tenant building. Thinking it would be a really quiet day, I pulled out my donuts, balanced my tea as I tugged on the building door. Locked. I went around the other side - also locked. I went to the front entrance, and it was also locked.

I had never thought to ask if the building would be closed for the day. I don't typically work in the building after hours so building access had never been an issue. I have access to our offices within the building and VPN access for working from home when I need to pull a late night or get an early start. The company is limited to the number of building access cards we're allowed to have, so we're particular about who gets them. It's one of the obvious details that often get overlooked, because it's so obvious. We think it a given and don't pay attention. Focusing on the big stuff, the stuff that matters - the indemnification clause, the proper reps and warranties, the timing of the patent application or the marketing material disclosures. We assume that the little things are taken care of by the process, by the administrators, or are the natural state of things. Until we get locked out of the building juggling our tea and 18 donuts.

Because of my commute I had an understanding with my boss upon being hired that I wouldn't be working after hours at the office. It never occurred to the office manager that I would need one to work on the unofficial 'holidays' when the building is closed but the office is open. So this morning, I stood at the door for a few minutes laughing at myself. And then I took my donuts home to the kids - giving some away to a panhandler on the way, because no one needs 18 donuts at home.

Wednesday, November 9, 2016

It’s that time of year again, time to contemplate the things in our lives for which we are thankful. Every year the family creates a list of things that we’re grateful for – given the youth of some family members, toys and candy usually make the top of the list. Given my fondness for champagne, so does bubbles. But the thing we’re most thankful for are the members of our family – mom, dad, brothers, Nana, Papa, cousins, and the many friends with whom we share a bond stronger than blood.

This year has been one of ups and down and I’m more grateful than ever for the wonderful people in my life. For old friends and new, I have been more than blessed with the love, mentorship, support, laughter, and encouragement from so many. And for that I am truly thankful.

As a legal blogger (of sorts), I also have to attest to my absolute dependence on technology and provide proper gratitude for the tools that make my job easier. From my smartphone that keeps me connected 24/7 and allows me some semblance of balance in my life to the software that automates once manual processes that allows my team to shine, technology has had a major positive impact on my practice.

I am also more than thankful that this election season is over. I hope that my social media feeds become a friendlier place and I can go into the office without worrying about a fist fight breaking out over the latest twitter war or email leak.

And because it’s my list, I’m thankful for bubbles. What are you thankful for?

Thursday, November 3, 2016

Every couple of months you’ll see an article, presentation or infographic trying to define the line between a leader and a manager. Often they’re full of platitudes like leaders listen more than they talk and surround themselves with “A” people. One of my favorite useless platitudes is that leaders have their heads up while managers have their head down – meaning that a true leader will come up with ideas and delegate the execution to people more capable of pulling it off. While those who have ‘only’ reached the manager level, will still keep their heads down focusing on the work right in front of them instead of thinking the big thoughts.

For many of us in small departments, it really isn’t a choice. There’s just no one there to delegate to, or if there is, they are so far in the weeds that it’s not fair to pile more on them. Of course that doesn’t relieve you of the obligation to think outside of the box and come up with innovative solutions to the problems your company is facing.

So does that mean that we’re not leaders? Or all hope to developing leadership skills is lost? Of course not. Everyday leaders of all stripes are able to inspire others while getting their own jobs done well. The trick is to know when to put your head down and when to look up. Every day there is real work to be done. And that’s what our company’s pay us to do. Sure, they love the great ideas that increase efficiency or improve the bottom line, but they expect us to do our day jobs too.

The first thing you lift your head up for is increasing the efficiency in your day job - contract management, process development, alternative fee arrangements, etc. This gives some breathing room so that your ‘heads up’ time doesn’t just occur between the hours of midnight and 5 am.

Once you’ve established that, you use what you’re learning from your ‘heads down’ time to inspire and innovate. Your day job gives you unique insight into the challenges of multiple areas of the business. For example, knowing what contracts are in the queue gives you a unique view into the direction the company is actually heading regardless of what is being said at the quarterly all hands. Being able to raise your hand to call attention to a department entering into outsourcing agreements because they can’t meet unrealistic project deadlines can highlight the issues with the project. It also gives you the opportunity to identify synergies between departments – IT has just contracted for a ticketing system that has a lot of the features that marketing is looking for in project management, have the teams talked? Dealing with employment claims allows you insight into areas of the company culture that need improvement.

The list goes on and on. There’s a reason why a good general counsel is worth their weight in gold, and you don’t have to suck at your day job to get there.

Wednesday, October 26, 2016

I’ve recently been back in the market for a new job and one
of the common questions I ask in the interview process is what happened to the
last guy. While there will always be
spin on the part of an employer it sometimes be hard to discern if the reason
he left was because he wasn’t a team player or because he refused to be the
team doormat. This becomes even more
complicated in smaller companies where everyone wears multiple hats and does
grunt work regardless of their status. And
it becomes even harder to self-identify if you are the said poor team player or
doormat.

So I’ve come up with a checklist to help a would be doormat
out:

If you’re
asked to cover for an employee while they are out, even if it’s not purely
legal in nature, you’re being asked to be a team player. Frequently this will come from HR or other
executive functions where sensitivity to the potential issues reduces the
options and makes you the next best choice.

If you’re asked to permanently handle routine non-legal matters that are heavily administrative or otherwise
burdensome and your legal experience adds little or no value to the process,
you may be a doormat.

If you’re told budgets are tight so you’ll have
to make your own copies and type up your own letters – suck it up and be a good
team player.

If you’re told budgets are tight so you can’t
have a raise for the third time in three years yet co-workers are bragging
about 5-6 figure bonuses or going on lavish "retreat" work trips, you might
just be a doormat.

If the workload is increasing but in a haphazard
manner, i.e. some additional contract work, some additional employment matters,
a litigation matter once a year, etc.
You may be asked to step up and take on additional responsibility, which
may translate into a few more hours per week.
This is what good team players do, until…

If the workload has increased consistently over
a decent period of time so that there is easily enough coherent work for
another head (or two) to be added and you’re being asked to work double time,
it may be time to find a better team to play for.

Obviously, this isn’t an exhaustive list – but hey, it’s my
first post back. As always, feel free to
leave your own doormat examples in the comments.